California high court allows illegal immigrants in-state tuition

SAN FRANCISCO — In a case involving Kansas Secretary of State-elect Kris Kobach, the California Supreme Court ruled Monday that illegal immigrants are entitled to the same college tuition breaks offered to in-state high school students.

Kobach represented a group of U.S. students who filed the lawsuit seeking to invalidate the California law. Kobach has filed numerous cases across the country seeking to restrict the rights of illegal immigrants.

A unanimous state Supreme Court, led by politically conservative Justice Ming Chin, said the California provision was constitutional because U.S. residents also had access to the reduced rates.

While the ruling applies only to California, the case was closely watched nationally because nine other states, including New York and Texas, have similar laws.

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Republican congressmen Lamar Smith of Texas and Steve King of Iowa filed a friends-of-the-court brief urging that illegal immigrants be denied the reduced rate.

Kobach, senior counsel of the Immigration Reform Law Institute, which brought the suit, called Monday's ruling "superficial" and accused the California court of "bending over backwards to defeat the intent of Congress." He said that high national interest in the subject might win the U.S. Supreme Court's attention.

The California Legislature passed the controversial measure in 2001 that allowed any student, regardless of immigration status, who attended a California high school for at least three years and graduated to qualify for in-state tuition at the state's colleges and universities. In-state tuition saves each state college student about $11,000 a year and each University of California student about $23,000 a year.

A state appellate court ruled in 2008 the law was unconstitutional after a group of out-of-state students who are U.S. citizens filed a lawsuit. The suit alleged the measure violated federal prohibitions barring illegal immigrants from receiving post-secondary benefits not available to U.S. citizens based on state residency.

However, the state Supreme Court noted the California law says nothing about state residency, a distinction that foes of the plan said shouldn't matter. The Sacramento-based Pacific Legal Foundation, which supports numerous political efforts, said the spirit of federal law was to deny tuition breaks to illegal immigrants.

Foundation attorney Ralph Kasarda, who submitted a friend-of-the-court brief in the case, said California was not in sync with the federal mandate against showing favoritism to illegal immigrants.

"California's policy is also atrocious financial stewardship," he said.

The state law also requires illegal immigrants who apply for the in-state tuition to swear they will attempt to become U.S. citizens. The applicants are still barred from receiving federal financial aid.

"Through their hard work and perseverance, these students have earned the opportunity to attend UC," said University of California president Mark G. Yudof. "Their accomplishments should not be disregarded or their futures jeopardized."

Kobach, a law professor at the University of Missouri-Kansas City, also failed to invalidate a similar law in Kansas. His lawsuit in Nebraska is pending.

Kobach also was the chief drafter of Arizona's tough new law against illegal immigrants, which is pending before a federal appeals court.